NEWARK TEACHERS UNION LOCAL 481 AFT, AFL-CIO VS. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK (NEW JERSEY COMMISSIONER OF EDUCATION) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 6, 2019
• Docket: A-1658-16T1/A-1731-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-1658-16T11 A-1731-16T1

NEWARK TEACHERS UNION LOCAL 481 AFT, AFL-CIO,

Petitioner-Respondent,

v.

STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY,

Respondent-Respondent. ______________________________

IN THE MATTER OF ORLEANA SIMPSON, NEWARK PUBLIC SCHOOL DISTRICT,

Appellant. ______________________________

Petitioner-Appellant,

1 These are back-to-back appeals consolidated for the purpose of this opinion. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY,

IN THE MATTER OF ORLEANA SIMPSON, NEWARK PUBLIC SCHOOL DISTRICT,

Respondent. ______________________________

Argued telephonically November 29, 2018 – Decided September 6, 2019

Before Judges Suter and Geiger.

On appeal from the New Jersey Commissioner of Education, Docket No. 279-11/13.

Colin M. Lynch argued for appellant Orleana Simpson in A-1658-16 (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, PC, attorneys; Colin M. Lynch, of counsel and on the brief; Marissa A. McAleer, on the briefs).

Eugene G. Liss argued the cause for appellant Newark Teachers Union Local 481 AFT, AFL-CIO in A-1731- 16.

Ramon E. Rivera argued the cause for respondent State- Operated School District of the City of Newark, Essex County (Scarinci & Hollenbeck, LLC, attorneys; Ramon E. Rivera, of counsel and on the briefs; Carolyn R. Chaudry and Shana T. Don, on the briefs).

A-1658-16T1 2 Gurbir S. Grewal, Attorney General, attorney for respondent Commissioner of Education (Caroline Jones, Deputy Attorney General, on the statement in lieu of brief).

Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Civil Service Commission in A- 1658-16 (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In these back-to-back appeals, which we consolidate in one opinion,

Orleana Simpson and other former attendance officers (Simpson appellants) and

the Newark Teachers Union Local 481 (NTU) appeal from a final decision of

the Commissioner of the Department of Education (Commissioner).2 In A-

1658-16, the Simpson appellants are forty-six attendance officers previously

employed by the State Operated School District of the City of Newark (District),

who were laid off in July 2013 as part of the District-wide layoff plan. They

contend their layoff violated the State's compulsory education laws, arguing that

2 The Simpson appellants' initial notice of appeal also appealed from the Civil Service Commission's (CSC) final decision dated November 16, 2016. Their amended notice of appeal deleted reference to the CSC's final decision, listing only the Commissioner's final agency decision as the decision under appeal. We conclude from this that the Simpson appellants did not appeal the CSC's decision, although their brief makes repeated reference to that decision. We address the CSC decision in our opinion only as necessary to the issues on appeal. A-1658-16T1 3 the position of attendance officer—that was abolished in the layoff—is required

by law. They claim the layoff was conducted in bad faith because they were

replaced by Student Support Teams (SSTs), comprised of District employees.

The Simpson appellants seek reinstatement with full back pay and benefits.

In A-1731-16, NTU also appeals the Commissioner's final agency

decision. It argues the layoff was illegal and contrary to the Legislature's intent.

It contends the Commissioner should have ordered the District to cease and

desist from using SSTs to enforce the compulsory education laws. We affirm

the Commissioner's final decisions.

I

In 2013, the District faced a budget deficit of $56,900,000. Evidence

showed that State aid to the District had not increased, it lost a one-time only

source of revenue and it had increased costs. After the District met with the

NTU in April 2013, the CSC approved the District's layoff plan to be effective

in July 2013. The plan entailed laying off 202 employees, including all forty-

six of the District's attendance officers. The position of attendance officer was

abolished in the layoff.

Under Title 18A, schools are to appoint "qualified persons to be

designated as attendance officers." N.J.S.A. 18A:38-32. After one year, an

A-1658-16T1 4 attendance officer can attain tenure. N.J.S.A. 18A:38-33. Attendance officers

enforce the compulsory education laws. N.J.S.A. 18:38-32. According to their

job description, an attendance officer "visits schools and homes to promote

school attendance, investigates absences, and determines causes of absences or

delinquency . . . ." The attendance officer also performs "other related duties as

required," such as "[e]nforc[ing] any remedial actions authorized to improve

student attendance," and "conduct[ing] investigations." Prior to the layoff,

attendance officers assigned to truancy operated four buses to pick up between

350 and 700 truant students per week and take them to school.

Under State Board of Education regulation N.J.A.C. 6A:16-7.6, "[e]ach

district board of education shall develop, adopt, and implement policies and

procedures regarding the attendance of students . . . ." The District developed a

new attendance policy after the layoff. It included the requirement that each of

the District's sixty-eight schools form an SST, to "monitor student attendance

and combat truancy." The SST is comprised of a principal or vice principal,

social worker, guidance counselor, parent coordinator, school resource officer,

a nurse and two teachers. SST members do not receive additional compensation

because they already are District employees. The Simpson appellants and NTU

complain that because there was no attendance officer on the SST, no one was

A-1658-16T1 5 tasked with the responsibility to canvas the streets for truant students. They

contend the State's compulsory education laws were violated by laying off the

attendance officers and transferring some, but not all their duties to the SSTs.

The Simpson appellants filed a good faith layoff appeal under N.J.A.C.

4A:8-2.6(a)(1). This was transmitted to the Office of Administrative Law

(OAL) for a hearing. Several months later, the NTU filed a petition with the

Commissioner that challenged the layoff as a violation of the compulsory

education law. That petition was transmitted to the OAL for a hearing. The

administrative law judge (ALJ) consolidated the cases and determined the

Commissioner's interest was the predominant one because of the allegation the

layoffs violated Title 18A. Thereafter, a consolidated hearing was conducted.

The ALJ's initial decision recommended reversing the District's layoff of

the attendance officers. She found that although "some of the responsibilities

that attendance [officers] had" were transferred to the SSTs, no one had the "sole

responsibility . . . to look for truant students." Because of this, the ALJ

concluded the District violated N.J.S.A. 18A:38-28, -29, and -32 "when it

abolished the position of attendance [officer]." The ALJ determined that

abolishment of the position constituted a bad faith layoff because of the statutory

violations, even though the ALJ found with respect to other positons laid off ,

A-1658-16T1 6 that appellants had not proven "the layoffs were done for reasons other than

economy and efficiency."

The Commissioner's May 12, 2016 final decision rejected the ALJ's initial

decision, finding that the layoff of the attendance officers did not violate the

statutes. The Commissioner observed that the purpose of an SST was to monitor

student attendance and to monitor truancy, which is what the attendance officers

had done. He determined that N.J.S.A. 18A:38-32 did "not require the

employment of individual employees to serve in the role of attendance officer,"

and that "[d]esignating a team to perform the core duties outlined in the statute

[was] acceptable, provided that the ultimate goal of encouraging student

attendance is achieved—regardless of whether the team members have

additional job duties and responsibilities." There was no requirement under

N.J.S.A. 18A:38-32 for an attendance officer to be a full-time position. The

SSTs performed many of the functions set forth in N.J.S.A. 18A:38-29, by

warning parents, notifying them in writing about truancy and using "technology

to assist with the performance of statutory mandated responsibilities . . . ." Even

though N.J.S.A. 18A:38-28 required that an attendance officer "who shall find"

a truant child return the child to the parent or teacher, the statute "[did] not

compel [the District] to develop a scheme wherein attendance officers are

A-1658-16T1 7 required to canvas the streets searching for truant students." Instead, the

Commissioner noted "[a]dvancements in technology will naturally result in new

and innovative ways to locate truant students." The Commissioner's decision

concluded that the layoff was in compliance with the compulsory education

laws.

The CSC issued its final decision on November 16, 2016. Because the

Commissioner found that the layoff was not a violation of the statutes, the CSC

determined that appellants did not prove the layoffs were made in bad faith.

There was ample evidence that the layoffs were for reasons of economy and

efficiency. Appellants did not show they were targeted for layoff for

discriminatory or other insidious reasons.

On appeal, the Simpson appellants address both final agency decisions in

their brief.3 They contend the layoff of all the attendance officers violated the

compulsory education laws because they require the appointment of attendance

officers to enforce these laws. The Simpson appellants argue the

Commissioner's decision is arbitrary and not supported by the record. They also

3 As noted, their amended notice of appeal identified only the Commissioner 's decision as subject to appeal. A-1658-16T1 8 argue the layoffs were conducted in bad faith, and many of the attendance

officers' functions were distributed to non-civil service employees.

The NTU argues on appeal that the Commissioner's decision was illegal

and contrary to the evidence developed at the OAL. It asserts the decision was

contrary to the legislative intent that the compulsory education laws are to be

implemented by appointment of attendance officers.

II

"Our review of administrative agency action is limited." Russo v. Bd of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re

Herrmann, 192 N.J. 19, 27 (2007)). An agency's decision should be upheld

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,

or that it lacks fair support in the record." Herrmann, 192 N.J. at 27-28 (citing

Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "When an agency

violates the express policy of its enabling act, the agency action may be deemed

arbitrary and capricious." Caporusso v. N.J. Dept. of Health, 434 N.J. Super.

88, 103 (App. Div. 2014) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of

Envtl. Prot., 101 N.J. 95, 103 (1985)). Our "[i]ntervention is warranted when

the action is unsupported or unaccompanied by reasonable explanation." Ibid.

(citing Pub. Serv. Elec. & Gas Co., 101 N.J. at 103). "Because '[t]he grant of

A-1658-16T1 9 authority to an administrative agency is to be liberally construed to enabl e the

agency to accomplish the Legislature's goals,'" we generally defer to the

agency's statutory interpretation. In re Pub. Serv. Elec. & Gas Co.'s Rate

Unbundling, Stranded Costs and Restructuring Filings, 167 N.J. 377, 384 (2001)

(alteration in original) (quoting Gloucester Cty. Welfare Bd. v. State Civil Servs.

Comm'n, 93 N.J. 384, 390 (1983)). However, we are not "bound by [an]

agency's interpretation of a statute or its decision on a strictly legal issue." L.A.

v. Bd. of Educ. of City of Trenton, 221 N.J. 192, 204 (2014) (alteration in

original) (quoting Dep't of Children & Families, N.J. Div. of Youth & Family

Servs. v. T.B., 207 N.J. 294, 302 (2011)).

N.J.S.A. 11A:8-1 "makes it clear that the employer may take layoff action

and demotions in connection with a budgeting decision where the interest of

economy and efficiency require it." Dimattia v. N.J. Merit System Bd., 325 N.J.

Super. 368, 374 (App. Div. 1999) (citing Pros. Det. Essex Cty. v. Hudson Bd.

Freeholders, 130 N.J. Super. 30, 43 (App. Div. 1974) (providing that a civil

servant's position can be abolished in good-faith for government economy)).

Where it is shown that a layoff action "is motivated by a bona fide desire to

effect economies and increase municipal efficiency[,] . . . [t]he presumption of

good faith attends the municipal action, and the burden is on petitioner to show

A-1658-16T1 10 bad faith." Greco v. Smith, 40 N.J. Super. 182, 189 (App. Div. 1956). Bad faith

must be "spelled out from words, conduct and all the surrounding circumstances

and facts." Id. at 193.

Appellants did not show that the layoff of the attendance officers was for

reasons other than efficiency and economy. It was undisputed that the District

faced a $56,900,000 budget shortfall; it laid off 202 employees in 2013 to

address that. Appellants' only proof supporting their contention that the

attendance officers were laid off in bad faith is their argument that the

compulsory education statutes were violated by abolishing the position of

attendance officer. We reject those arguments.

The State's compulsory education laws require parents or guardians of a

child between the age of six and sixteen to "cause such child regularly to attend"

school. N.J.S.A. 18A:38-25; see State v. Vaughn, 44 N.J. 142, 145 (1965)

(providing that parents bear the primary burden that a child receives an

education). Under Title 18A, every school district "shall appoint a suitable

number of qualified persons to be designated as attendance officers." N.J.S.A.

18A:38-32. The District is to "fix their compensation." Ibid. After one year,

an attendance officer attains tenure. N.J.S.A. 18A:38-33. The appointment is

A-1658-16T1 11 "for the purpose of enforcing the provisions [of the compulsory education

laws]." N.J.S.A. 18A:38-32.

Where an attendance officer finds a school aged child who is "truant from

school," the attendance officer "shall take the child and deliver him to the parent,

guardian or other person having charge and control of the child, or to the teacher

of the school which such child is lawfully required to attend." N.J.S.A. 18A:38-

28.

The attendance officer is to "examine into all violations [of the

compulsory education laws]" and then "warn [the] child . . . and the parent"

about the consequences of being truant. N.J.S.A. 18A:38-29. The attendance

officers shall give written notice to the parents that within five days the child is

to attend school regularly. Ibid.

Under the statute, the attendance officer has "full police power to enforce

[the compulsory education laws]" and may even "arrest without warrant any

vagrant child . . . ." N.J.S.A. 18A:38-29. Repeated absences could result in a

finding of juvenile delinquency. N.J.S.A. 18A:38-27. Sheriff officers, police

and constables "shall assist attendance officers in the performance of their

duties." N.J.S.A. 18A:38-30. Under N.J.S.A. 18A:36-25.2(a), where a child has

A-1658-16T1 12 unexcused absences for five-consecutive school days, the attendance officer

"shall investigate the absence and notify the . . . superintendent . . . ."

When interpreting a statute, the "paramount goal" is to effectuate the

intent of the Legislature. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing

Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). "The statute's language is

ordinarily the 'surest indicator' of that intent." Frugis, 177 N.J. at 280 (quoting

Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998)). Courts should "ascribe to

the statutory words their ordinary meaning and significance, and read them in

context with related provisions so as to give sense to the legislation as a whole."

DiProspero, 183 N.J. at 492 (citations omitted). "If the plain language leads to

a clear and unambiguous result, then [the] interpretive process is over."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195

(2007) (citing DiProspero, 183 N.J. at 492). "[A] court may not rewrite a statute

or add language that the Legislature omitted." State v. Munafo, 222 N.J. 480,

488 (2015) (citing DiProspero, 183 N.J. at 492). "[C]ourts should 'seek to

effectuate the "fundamental purpose for which the legislation was enacted."'"

Klumb v. Bd. of Educ., 199 N.J. 14, 25 (2009) (quoting Twp. of Pennsauken v.

Schad, 160 N.J. 156, 170 (1999)).

A-1658-16T1 13 We agree with the Commissioner that the statutes in question do not

require attendance officers to canvass the streets for students who are truant.

The statute provides if an attendance officer "shall find" any school aged child

who is truant from school that the attendance officer is to take the child to his

parent or to the teacher. See N.J.S.A.18A:38-28. The plain language of the

statute does not impose an affirmative obligation on attendance officers to go

searching for students who might be truant. That they performed this function

in the District, does not mean it was a "core duty" required by the legislation.

In a good faith lay off, "[t]he holders of positions may be laid off in the

interest of economy and their duties assigned to others. It is a question of the

bona fides of the action." Gianettino v. Civil Serv. Comm'n, 120 N.J.L. 531,

533 (Sup. Ct. 1938). We agree with the Commissioner that the tasks of the

attendance officer did not have to be performed by individual officers but could

be delegated to the SSTs. N.J.S.A. 18A:38-32 allows school districts to "appoint

a suitable number of qualified person to be designated as attendance officers. "

Under the statutory language, we agree with the Commissioner that the

legislation permits school districts to identify employees to perform the statutory

duties of an attendance officer without requiring the specific creation of an

A-1658-16T1 14 attendance officer position. 4 By forming SSTs comprised of District employees,

and tasking the SSTs with monitoring student attendance and truancy, the

District satisfied the statute by "appointing qualified persons" who then were to

be "designated" with these functions.

There was substantial evidence that the other tasks of the attendance

officers were being performed by the SSTs.5 Some of the tasks were being done

by new technologies. Under the District's new attendance policy each school

was to have an SST. SSTs are comprised of District employees whose

compensation did not increase by their membership on the SST. We see no

reason under the statutes why the tasks could not be delegated to SSTs where

warranted by reasons of economy and efficiency.

4 We are not tasked with evaluating the success or failure of the program on curbing truancy and do not address appellants' arguments in that regard. 5 "Power School Clerks" mailed out initial notices to parents. Teachers took attendance and called parents. Depending on the absences, parents were invited to meetings. Pre-judicial court representatives met with parents and children. Safety officers had police powers as did Rapid Response Officers and both addressed truancy issues, but neither canvassed the neighborhoods looking for children. SST members could make home visits when absences were within the five to nine day timeframe.

A-1658-16T1 15 We are satisfied that the plain language of the statutes is not violated by

the layoff of attendance officers and assignment of the tasks required by the

statutes to the SSTs. The Commissioner's decision was not arbitrary or

capricious. It is affirmed in both appeals. 6

Affirmed.

6 The Simpson appellants raised no issues in their brief regarding the CSC final decision except that it erred by relying on the Commissioner's decision. Having affirmed the Commissioner, we also would affirm the CSC final decision if it were properly before us. A-1658-16T1 16